Scotland’s hate-crime legislation can be difficult to navigate, particularly where questions of prejudice and freedom of expression overlap. This guide explains the legal background to the latest changes and explores how the amended provisions are intended to work in practice, including the limits and protections that remain in place.
Change at a glance
Sex is being added to Scotland’s statutory hate-crime provisions
The change covers prejudice-based aggravations, stirring up hatred and the related freedom-of-expression protection.
When
5th April 2027
The Regulations come into force.
Where
Scotland
This is a Scottish law change.
Who it affects
Members of the public, people reporting potential hate crimes, Police Scotland, prosecutors and courts.
What you need to do
No registration or application is required. The change affects how certain offences can be recorded, prosecuted and sentenced where the legal tests are met.
Last checked: 1st November 2026.
What is changing from 5th April 2027?
The Scottish Government has made regulations adding sex to three parts of the 2021 Act. It will become one of the characteristics that can be considered when deciding whether an existing offence is aggravated by prejudice. It will also be added to the groups covered by the Act’s stirring-up-hatred offence. The related protection for discussion and criticism under section 9 will be extended to sex as well.
The regulations do not replace the 2021 Act or rewrite all its offences. They add sex to the relevant lists and set out how the characteristic is defined for these provisions.
The three parts of the change
What the new provisions cover
01 · Aggravation
Prejudice relating to sex
An existing criminal offence can carry a statutory aggravation where the required prejudice test is proved.
02 · Stirring up hatred
Groups defined by sex
The existing offence will extend to groups defined by reference to biological sex, subject to its legal tests.
03 · Expression
Discussion and criticism
The Act’s specific protection for discussion or criticism relating to a characteristic will also include sex.
Start date: 5th April 2027 · Scotland
How is sex defined under the Regulations?
For these hate-crime provisions, the Regulations define groups by reference to a person’s biological sex being female or male. They state that “biological sex” means sex at birth.
Group 1
Female
Biological sex at birth.
Group 2
Male
Biological sex at birth.
This definition applies to the characteristic being added to sections 1, 4 and 9. It does not change the definitions of the other characteristics already covered by the Act.
How does a hate-crime aggravation work?
A statutory aggravation is not a separate offence. It is an additional feature of an existing criminal offence where the required link with prejudice is established.
Under section 1 of the 2021 Act, the test involves malice and ill-will towards a person because of their actual or presumed membership of a group, or prejudice towards a group more generally. From 5th April 2027, sex will be added to the characteristics that can be considered.
In simple terms
1 · AN OFFENCE
An existing criminal offence has been committed.
2 · THE PREJUDICE TEST
The required malice and ill-will link to a protected group is established.
3 · THE COURT
If proved, the aggravation is recorded and taken into account at sentencing.
Where an aggravation is proved, the court must record it and take it into account when deciding the sentence. The court must also state whether it affected the sentence and, if so, explain how.
What changes to the stirring-up-hatred offence?
Section 4 of the 2021 Act covers threatening or abusive behaviour, or communicating threatening or abusive material, where the person intends to stir up hatred against a group defined by a listed characteristic. From 5th April 2027, sex will be added to that list.
The two parts of the legal test
FIRST
Threatening or abusive
The behaviour or material must meet this description.
AND
Intention to stir up hatred
The person must intend to stir up hatred against the group.
The Scottish Government describes this as a high threshold. Disrespect, disagreement or disdain on its own is not the same as an intention to stir up hatred. The separate likelihood test in section 4(1) applies to the racial hatred offence. It is not the test being extended to sex, which is added to the characteristics covered by section 4(2).
The Act also provides a defence where the accused can show that the behaviour or communication was reasonable in the particular circumstances. The court must have particular regard to the importance of freedom of expression under Article 10 of the European Convention on Human Rights when considering this defence.
In practice: adding sex to the list does not remove these requirements. An offensive opinion, discussion or criticism does not automatically become a criminal offence because the subject relates to sex.
What does the freedom-of-expression protection cover?
Section 9 of the 2021 Act says that behaviour or material is not to be treated as threatening or abusive for the stirring-up-hatred offence solely because it includes discussion or criticism of matters relating to a listed characteristic. The Regulations extend this protection to sex.
What this means
Discussion or criticism relating to sex is not, by itself, treated as threatening or abusive under this provision.
The word “solely” is important. This protection does not make every form of expression lawful in every circumstance. The other parts of the section 4 test still apply, and the full context matters.
Who is affected by the change?
The change is relevant to members of the public in Scotland, including women and girls and men and boys. It also affects how potential cases are handled by the criminal justice system.
Public
People reporting or affected by potential hate crimes.
Police
Police Scotland applies the amended law when it comes into force.
Prosecutors
The Crown Office considers whether the legal tests are met.
Courts
Courts apply the provisions where charges are proved.
The Scottish Government has said the lead-in period allows Police Scotland time to update training and guidance.
A further change: how cases are reported
The Regulations also update the Scottish Government’s reporting requirements for both convictions and cases recorded by Police Scotland.
Conviction reports
Information will identify whether the sex-related offence concerned the female or male sex.
Police-recorded cases
Published reports will distinguish whether the sex recorded as targeted was female or male.
Do the new provisions apply to incidents before April 2027?
No. The new sex-based provisions apply to relevant acts or omissions on or after 5th April 2027. They do not apply retrospectively.
Before 5th April 2027
The new sex-based provisions do not apply.
From 5th April 2027
The new provisions can apply where the legal tests are met.
For an offence involving a course of conduct rather than a single act, all the relevant conduct must have taken place on or after 5th April 2027 for the new provisions to apply.
Does this apply across the UK?
No. The Hate Crime and Public Order (Scotland) Act 2021 is Scottish legislation, and these Regulations amend that Act. The change described in this article applies in Scotland only. It does not automatically amend the criminal law in England, Wales or Northern Ireland.
HATE-CRIME LAW INFORMATION & SOURCES
Official guidance and how we checked the changes
These official sources support this guide and explain the legal changes taking effect in Scotland.
01 · THE REGULATIONS
Scottish Statutory Instrument 2026/150
The final regulations setting out the addition of sex, the definition used, the commencement date and transitional arrangements.
02 · ORIGINAL LEGISLATION
Hate Crime and Public Order (Scotland) Act 2021
The Act containing the existing statutory aggravations, stirring-up-hatred offence and freedom-of-expression provisions being amended.
03 · SCOTTISH GOVERNMENT
Further protections for women and girls
Government explanation of the decision to add sex as a characteristic under the hate-crime legislation.
04 · EQUALITY IMPACT ASSESSMENT
Scottish Government Equality Impact Assessment
The assessment published alongside the Regulations, setting out the Government’s consideration of equality impacts.
05 · SCOTTISH PARLIAMENT
Criminal Justice Committee report
Committee scrutiny of the Regulations, including consideration of their operation and transitional provisions.
Information checked against the final Regulations and official Scottish Government and Scottish Parliament material on 1st November 2026.
This article provides general information about the legislation in force or due to come into force in Scotland. It is not legal advice. The application of criminal law depends on the facts and circumstances of each case. Check the legislation or seek independent legal advice if you need advice about a specific situation.